MOHAMMAD IBRAHIM KHAN, J-.This is an appeal preferred by Niamat Khan a witness in Sessions case No.22/SC of 2014 who has challenged the judgment dated 16.03.2016, passed by the learned Additional Sessions Judge-X, Peshawar. The prayer set forthwith is: "On acceptance of this appeal, the order dated 16.03.2016 passed by ASJ-X, Peshawar may kindly be set aside and respondent No.1 may be awarded proper , sufficient and capital punishment in accordance with law."
2. All that is charge sheeted, the accused/respondent while sharing common intention with proclaimed offender/absconder accused Alam Zeb, on 08.08.1999 at round about 12:00 hours in the fields of deceased Awal Dad, situated at Banda Matha Khel committed his Qatl-e-Amad by firing at him with their respective firearms. During this time the deceased Awal Dad was working at his fields and due to issue of some domestic dispute, this occurrence had taken place.
3. Back in the year 2005 when proceedings were conducted u/s 512 Cr.PC the prosecution by that time had examined seven PWS. Accused/respondent was declared proclaimed offender vide order dated 21.11.2005 and non-bailable perpetual warrants of arrest were issued against him as well as the fugitive accused Alam Zeb.
4. The accused/respondent was then arrested on 11.02.2014 as per card of arrest. This time in the trial the prosecution examined PW-1 Fakhar Yab FC, PW-2 Shakirullah Bangash, SP Rural PW3, Zardar, PW-4 Niamat Khan, PW-5 Khaliq Dad Khan Investigation Officer, PW-6 Dr. Adil Jan Associate Professor, PW-7 Muhammad Sher ASI, PW-8 Ghaffarullah SI while PW Abdul Wali was abandoned. After that accused/respondent was examined u/s 342 Cr.PC. The questions put forth to him were answered negatively and he posed innocence.
5. Counsel for the appellant contended that this is a broad day light occurrence. Keeping the distance 6/7 Kilometers, it can be said safely that it is promptly lodged FIR. The witness to the murder of deceased Awal Dad, PW-4 Niamat Khan is his son who has narrated the occurrence in its natural sequence quite consistent with the facts given therein. The medical evidence has strong corroboration with the ocular testimony in respect of the time of occurrence and the injuries sustained by the deceased on conducting the autopsy of deceased Awal Dad by PW-6 Dr. Adil Jan disclosing the cause of death in its true prospective is quite consistent. Mere the relationship of the witness PW-4 Niamat Khan with deceased Awal Dad will not affect the prosecution evidence to be disbelieved. It is the intrinsic value of such evidence which is to be accounted for and not inter see relationship, there is every truthfulness attached to and sufficient for to bring home the charges. While developing the arguments learned counsel for the appellant harped the need for conviction of accused/respondent per statement of PW Mst. Juma Gula, complainant of this case when recorded on 20.05.2000 in proceedings u/s 512 Cr.PC. This statement has much legal value attached to it as she being indisposed of due to advance age, feeble and hard of hearing by the time to be examined as witness being complainant of case. An application dated 28.10.2014 was submitted before the learned trial Court let she (Mst. Juma Gula) be examined by Standing Medical Board so as to ascertain the capability whether she can depose before the Court. This application was later dismissed on 23.02.2015 by the order of learned trial Court. It was assailed by the Hon'ble High Court, Peshawar in CR No.45-P/2015, whereby on its acceptance the prosecution was allowed to abandon Mst. Juma Gula and the learned trial Court was directed to transpose her statement recorded u/s 512 Cr.PC which was to be considered with law on the subject. Thereby the general rule is that such statement is legal and admissible which is given during the course of judicial proceedings in a trial held u/s 512 Cr.PC. Reliance is placed PLD 2008 Supreme Court 123 (Dilawar Hussain Vs the State), 2007 SCMR 641 (Ashfaq Ahmad Vs the State), 2006 P Cr.L J 1436 (Mumtaz Vs Moin and another), 2008 SCMR 917 (Farooq Khan Vs the State), PLD 2010 Supreme Court 642 (Arbab Tasleem Vs the State).
6. Having heard at length learned counsel for the appellant, with his assistance we have gone through the record.
7. Indeed, this is an old occurrence pertaining to the wistful murder of deceased Awal Dad supervene on 08.08.1999. In order to preserve the evidence in the absence of an accused, the relevant provision for preservation of the evidence is a trial in absentia within the meaning of 512 Cr.PC. The intrinsic value of the statements recorded u/s 512 Cr.PC are lawfully transferred in the prescribed manner to the file of the trial Court, which fall within the category substantive evidence but such statements when are given preference, this is the utmost requirement for the prudent judicial mind to exercise much care and caution while placing reliance where conviction is the requirement of capital charge because the statements have never been subjected to cross-examination. This is the imperative duty casted upon the Courts to take into consideration strong independence corroborative evidence, where the evidentiary value of such evidence is to a degree to establish the guilt of the accused beyond reasonable doubts, the Courts shall only appreciate the stint and quality of corroborative evidence which in comparison must be above higher stratum.
8. In this case the record when delved gravely although in order to the effect that statement of PW Mst. Juma Gula has been transposed in this file when even the Moharrir of the Court has been directed to place the statement dated 20.05.2000 of complainant Mst. Juma Gula recorded u/s 512 Cr.PC on the record of this trial but nowhere this statement has been placed or found. At all in the light of the dictum contained in PLD 2004 Peshawar 20 (Ali Raza Vs Fazl-e-W ahid) even if the statement of PW Mst. Juma Gula is considered for ultimate conviction, it does not find any support from the statement of PW-4 Niamat Khan. The only examined later solitary statement suffers from many discrepancies with noticeable improvements at different stages of the cross-examination. These improvements in the light of wisdom contained in 2006 SCMR 6 (Akhtar Ali Vs the State), 2007 SCMR 1885 that whenever a witness in his statement subsequently improves to strengthen prosecution case, its validity for being found dishonest could not be relied upon such improvements once found to be deliberate and dishonest, would cast doubts on veracity of such witness.
9. It is cardinal principle of the Qanoon-e -Shahadat (10 of 1984), Arts. 46 & 129 (g) enshrined in 2011 SCMR 646 (Tahir Khan Vs the State) that whenever there is a witness who has seen the occurrence and his evidence is of much more importance who is to depose true accusation against an accused charged with an offence for inviting capital punishment, by non-production of such prosecution witness will leave spreading all alone benefit of any reasonable doubt. This must go to the accused and mere falsity of defense version was not to be taken adversely against the accused. In this case it has happened that PW Umer Dad who at the same time was working in the fields on the day of occurrence, was abandoned without any reason being unnecessary as witness of the same of fact, strong presumption is attached that this witness if examined would have never supported his cousin PW -4 Niamat Khan.
10. The arguments that the accused/respondent after the commission of the murder of Awal Dad then screened off for long 15 years and mere on this score, he is liable for conviction. It is to state that abscondance is the weakest type of corroboratory evidence and where ocular evidence is disbelieved, mere abscondance cannot be set as alone forming basis for conviction. Reliance is placed on 2006 SCMR 1707 (Muhammad Farooq Vs The State), PLD 1980 SC 201 (Farman Ali & others Vs The State), 2010 SCMR 566 (Rohtas Khan Vs The State) and 2007 SCMR 162 (Shafqat Abbas Vs The State) and 2016 P Cr. L J 114 (Riaz Ahmad Vs The State).
11. It has been consistently held by the Hon'ble Apex Court that an accused after his acquittal earns for himself the presumption of double innocence firstly before the trial and secondly after going the rigors of a protracted trial, thus the findings of the learned trial Court cannot be easily set at naught unless the same are found to be arbitrary and whimsical which has intern occasioned the miscarriage of justice being based on the patent misreading and mis-appreciation of evidence. Reliance is placed on 2004 SCMR 249 head note (b) 2009 SCMR 288 and 2009 SCMR 946 .
12. This criminal appeal is devoid of merits,which stands dismissed in limine.